What can boards do to protect property in an approaching storm

August 31st, 2012 by Jean Winters, Esq.

With the anniversary of Hurricane Andrew and Tropical Storm Isaac drenching the area, many have thought about their rights and obligations in community associations to ensure hurricane protection for their homes. Furthermore, what can and should boards do to protect the community, without violating owners’ rights?

HOAS:

There is no statute defining rights and responsibilities of the homeowner or HOA to install or maintain hurricane protection, but many HOA communities’ governing documents provide shutter requirements not only as to installation but also how when they must be closed and opened.

If fines are allowed by the governing documents, this means homeowners can be fined for not complying with the time requirements for opening or closing shutters. A board’s authority to enact board rules also depends on the authority provided or reasonably inferred by the Declaration. Like any other rule, the board must enforce shutter provisions reasonably. This has created controversy for homeowners that don’t want the board to operate their shutters in their absence. However, if legally enacted rules require closing or opening shutters a certain length of time before or after a storm warning, those rules are usually enforceable. Homeowners should consider providing a neighbor or trusted friend with a key and instructions for storm preparation in the event the homeowner is out of town.

Common sense should determine the rules, because sometimes it may appear danger has passed when it has not. For example, Tropical Storm Isaac passed South Florida, but outlying bands that did not curve but moved straight north created wind gusts, extensive rain and tornados. Boards should take this into consideration rather than rely on rigid rules – perhaps it is time to revisit those rules. For owners, impact window glass may create less controversy since those issues become moot.

Most association documents have a provision that if the owner does not maintain, the association can do so and charge the owner for it. With HOAs, boards should look to the governing documents for guidance as to what to do. Boards have a fiduciary duty to protect the common area and to make the area safe. This would also apply to abandoned homes. Boards can and should secure an abandoned home, and pick up potential “missiles” (making sure to return them when safe). Necessary maintenance (in this case closing hurricane shutters or boarding windows) or removal of debris is a charge that can usually be passed on to the homeowner – assuming the homeowner cannot be reached or refuses to do so and the governing documents so allow.

A real concern is the abandoned or foreclosed homes with debris, unprotected windows or unstable fences. Good luck getting Fannie Mae, Chase or any of the banks to take care of these properties. By the time you get through the bank, the foreclosure attorneys’ title company, the servicer, asset manager, and the analyst the servicer hired, the emergency would be 5 years passed, and someone could be killed.

CONDOS:

Unlike HOA law, Chapter 718 of the Florida condominium statutes does address the ability of the board to take action to ensure adequate hurricane protection, even in the absence of a unit owner’s consent or express provisions in the governing documents. In some cases, that may mean a majority vote of the owners to have the association purchase either shutters or impact glass, and charge the owners or treat as a common expense.

Every board is required by statute, Section 718.113 (5) to adopt hurricane shutter specifications for each building within each condominium and designate color, style relevant factors, but all specifications must comply with applicable code.

The condo statutes previously related to hurricane shutters. Recently, the legislature recognized the wisdom in adding hurricane impact glass that does not need the same attention (and add unnecessary controversy over when to open and close). The laws have changed significantly in the last few years. The Legislature has recognized the critical need condos have to ensure uniform hurricane protection, and in many cases to install hurricane impact glass. Legislation allowing the board to install impact resistant glass or other code-compliant windows with a majority vote was signed into law in 2011.

Now, upon a majority approval, the board may install impact glass or other code-compliant windows regardless of whether the documents authorize it, and without jumping through procedural hoops. A vote is not required if the maintenance, repair and replacement of code compliant shutters or windows are already required by the Declaration of Condominium. The Declaration now determines whether or not the association or unit owner is responsible for the maintenance of such hurricane protection.